Review of the Law Relating to Self-defence
Issues Paper No.20
November 2014
Contents
Information about the Tasmania Law Reform Institute
Background to this Issues Paper
How to Respond
List of Questions
Part 1: Introduction
1.1The law of self-defence
1.2The need for reform
Part 2: Options for Reform
2.1Should the Criminal Code (Tas) s 46 be amended?
2.2Models to insert requirement of reasonableness
2.3The relationship between mental illness and the defence of self-defence contained
in the Criminal Code (Tas) s 46
2.4The relationship between intoxication and the defence of self-defence contained
in the Criminal Code (Tas) s 46
2.5Domestic violence
2.6Partial defences to murder: mistaken or excessive self-defence and diminished
responsibility
2.7Consistency between s 46 (self-defence), s 39 (prevention of commission of a crime)
and s 40 (defence of dwelling-house)
Information about the Tasmania Law Reform Institute
The Tasmania Law Reform Institute was established on 23 July 2001 by agreement between the Government of the State of Tasmania, the University of Tasmania and The Law Society of Tasmania. The creation of the Institute was part of a Partnership Agreement between the University and the State Government signed in 2000. The Institute is based at the Sandy Bay campus of the University of Tasmania within the Faculty of Law. The Institute undertakes law reform work and research on topics proposed by the Government, the community, the University and the Institute itself. The Institute’s Director is Professor Kate Warner of the University of Tasmania. The members of the Board of the Institute are Professor Kate Warner (Chair), Professor Margaret Otlowski (Dean of the Faculty of Law at the University of Tasmania), the Honourable Justice Stephen Estcourt (appointed by the Honourable Chief Justice of Tasmania), Ms Terese Henning (appointed by the Council of the University), Mr Craig Mackie (nominated by the Tasmanian Bar Association), Ms Ann Hughes (community representative), Mr Rohan Foon(appointed by the Law Society of Tasmania) and Ms Kim Baumeler (appointed at the invitation of the Institute Board).
Background to this Issues Paper
In September 2011, the Director of Public Prosecutions wrote to the Attorney-General to raise concerns that the current Tasmanian law on self-defence, as contained in s 46 of the Criminal Code (Tas), was too lenient and was out of step with modern standards. In November 2012, the Attorney-General requested that the Tasmania Law Reform Institute conduct a far-reaching examination of the law in Tasmania relating to self-defence and provide advice as to whether the law should be amended.
In relation to self-defence, this Issues Paper considers whether the current law of self-defence in Tasmania should be retained or whether any amendments should be made to the existing law. It considers the circumstances in which a person is lawfully entitled to use force (including lethal force) in defence of themselves or another person. In cases where the accused’s perception of the situation corresponds with the actual situation, this may appear a relatively intuitive and straightforward assessment. However, greater difficulties arise when there is a difference between the actual circumstances and the circumstances as the accused saw them. There is scope for considerable debate about the extent to which a person can rely on a mistaken belief for the purposes of self-defence, and whether the reason for the mistake has a role to play in making this assessment. This is the particular concern addressed in this Paper. It considers whether a person should be able to rely on:
- a mistake that results from a delusion arising from a mental illness;
- a mistake that was a result of psychological factors personal to the accused that meant that they were more sensitive to threats of danger than the normal person; or
- a mistake that arises from self-induced intoxication.
The Paper also considers whether it is desirable to ensure consistency between the defence of self-defence and other defences such as prevention of certain crimes and defence of dwelling-house. To this end, it examines issues that arise in relation to defence of property, and the special status the home enjoys as a place of sanctuary. It considers whether the defences of prevention of crime in s 39and defence of dwelling-house in s 40 of the Criminal Code might more appropriately be dealt with in a consolidated defence provision or whether the defences involve unique considerations that warrant a stand-alone provision.
How to Respond
The Tasmania Law Reform Institute invitesresponsesto the issues discussed in this Issues Paper.
There are a number of ways to respond:
- By filling in the Submission Template
The Template contains a series of case scenarios and asks you to indicate whether you consider that the defence of self-defence or defence of property should be available in the circumstances of the case. The Template can be filled in electronically and sent by email or printed out and filled in manually and posted. The Submission Template can be accessed at the Institute’s webpage <
- By providing a more detailed response to the Issues Paper
The Issues Paper poses a series of questions to guide your response —you may choose to answer all, some, or none of them. Please explain the reasons for your views as fully as possible. Submissions may be published on the Institute’swebsite, and may be referred to or quoted from in a final report. If you do not wish your response to be so published, or you wish it to be anonymous, simply say so, and the Institute will respect that wish. After considering all the responses, it is intended that a final report, containing recommendations, will be published. Responses should be made in writing.
Electronic submissions should be emailed to:
Submissions in paper form should be posted to:
Tasmania Law Reform Institute
Private Bag 89
Hobart, TAS 7001
The Issues Paper is available at the Institute’s web page at < or can be sent to you by mail or email.
If you are unable to respond in writing, please contact the Institute to make other arrangements.
Inquiries should be directed to Dr Helen Cockburn on the above contacts, or by telephoning (03) 6226 2069.
CLOSING DATE FOR RESPONSES:20 February 2015
1
List of Questions
Question 1(p 10) / Should the current law of self-defence contained in the Criminal Code (Tas) s 46 be amended to introduce an additional/different requirement of reasonableness or should the current formulation be retained? Please provide reasons.
Question 2
(p 11) / If the current test for self-defence is retained, should the Criminal Code s 46 be amended to reflect the wording of the Model Criminal Code or should the current wording be retained? Please provide reasons.
Question 3
(p 13) / If the Criminal Code (Tas) s 46 is amended to include a requirement that the accused’s perception of the circumstances be based on reasonable grounds, which model should be adopted:
(a)a model based on the common law position;
(b)a model based on the Northern Territory (non-Schedule 1 offences) position;
(c)a model based on the Western Australian position;
(d)a model based on the Queensland and former Tasmanian position;
(e)another model?
Question 4
(p 17) / Should all evidence of any abnormality in an accused’s mental condition be excluded from consideration in cases of self-defence under the Criminal Code (Tas) s 46?
Question 5
(p 18) / Should the Criminal Code (Tas) be amended to provide thatevidence of delusions insufficient to support the insanity cannot be relied on for the purposes of self-defence?
Question 6
(p 18) / Should the Criminal Code (Tas) be amended to provide that evidence of delusions can be relied on for the purposes of self-defence, with a successful argument of self-defence resulting in a qualified acquittal under s 16(3) (that is, not guilty on the grounds of insanity)?
Question 7
(p 18) / Should evidence of mental illness be admissible for the purposes of self-defence and, if successful, result in a complete acquittal? In the case of delusions, should evidence of delusions insufficient to support the insanity defence go the issue of self-defence?
Question 8
(p 22) / Should evidence of intoxication be considered for the purposes of self-defence?
In particular should it be considered:
(a)for the purpose of assessing the accused’s belief in the need for self-defence?
This would mean that the accused’s state of intoxication could be taken into account for the purposes of determining whether the accused had a belief in the need for self-defence.
(b)for the purpose of determining the circumstances as the accused believes them to be?
This would mean that the accused’s use of force would be assessed on the basis of the circumstances as the accused believed them to be, even if the accused’s perception of circumstances arose from a drunken or drug-induced mistake.
(c)as a physical characteristic of the accused in determining whether the response was reasonable?
This would mean that the accused could rely on their reduced capacity to respond attributable to intoxication in assessing whether the response was reasonable.
(d)if a requirement of reasonableness is inserted in relation to the accused’s belief in the need to use defensive force (see Question 1), for the purposes of assessing whether there were reasonable grounds for the accused’s belief or for the purposes of assessing if the accused’s belief was reasonable in the circumstances?
This would mean that the assessment of the reasonableness of the accused’s belief in relation to the necessity of using defensive force or the assessment of whether there were reasonable grounds for the accused’s belief would be made on the basis of the circumstances of the particular accused, including the accused’s state of intoxication.
Question 9
(p 23) / Should intoxication (including drug induced psychosis that does not amount to a mental illness) that is caused by methamphetamine use be treated differently for the purposes of self-defence in the Criminal Code (Tas) s 46 from intoxication arising from other causes?
Question 10
(p 23) / Should drug-induced psychosis that falls within the definition of a mental disease be treated differently for the purposes of self-defence in the Criminal Code (Tas) s 46 from mental illness arising from other causes?
Question 11
(p 23) / If restrictions are placed on reliance by an offender on an intoxicated mistake for the purposes of self-defence, should an exception be made for offenders in the case of intoxication that is not self-induced?
Question 12
(p 29) / Should reforms be made to the criminal law in Tasmania to facilitate the reception of evidence of family violence in relation to the defence of self-defence?
Question 13
(p 29) / Should reforms be made to the criminal law in Tasmania to specify that imminence is not necessary where self-defence is raised in the context of family violence?
Question 14
(p 29) / Should reforms be made to the criminal law in Tasmania to provide for jury direction where self-defence is raised in the context of family violence?
Question 15
(p 31) / Should a partial defence of mistaken self-defence be introduced in Tasmania if the Criminal Code (Tas) s 46 is amended by the insertion of a requirement of reasonableness in relation to the accused’s perception of the circumstances? Or is mistaken self-defence a matter that can be appropriately dealt with as part of the sentencing process?
Question 16
(p 31) / Should a partial defence of excessive self-defence be introduced in Tasmania? If so, should it be introduced only if the Criminal Code (Tas) s 46 is amended by the insertion of a requirement of reasonableness in relation to the accused’s perception of the circumstances? Or is excessive self-defence a matter that can be appropriately dealt with as part of the sentencing process?
Question 17
(p 32) / Should a partial defence of killing for self-preservation in a domestic relationship be introduced in Tasmania? If so, how should the defence be formulated?
Question 18
(p 33) / Should a partial defence of diminished responsibility be introduced in Tasmania? Or should diminished responsibility be a matter that is taken into account in sentencing?
Question 19
(p 36) / Should the defences of prevention of crime (Criminal Code (Tas) s 39) and/or defence of dwelling-house (Criminal Code (Tas) s 40) be made consistent with the defence of self-defence so as to contain the same mix of subjective and objective requirements?
Question 20
(p 36) / If consistency is desirable, how should this be achieved? Should the defence be consolidated in a single provision or should separate provisions be retained?
Question 21
(p 36) / Should the defence of defence of dwelling house sanction the use of even lethal force?
1
Part 1: Introduction
Part 1
Introduction
1.1The law of self-defence
1.1.1In Tasmania, the law of self-defence is contained in s 46 of the Criminal Code(Tas) and is formulated in one broad principle:
A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use.
Self-defence is not restricted to homicide. It is a defence of general application applying to crimes such as assault, wounding and causing grievous bodily harm, as well as homicide. Although referred to as a ‘defence’, the law is clear that the prosecution bears the onus of proof in respect of the defence of self-defence once there is evidence sufficient to raise the issue.[1] A successful claim of self-defence is a complete defence and the defendant is acquitted.
1.1.2It is well settled in Tasmania that, in assessing self-defence, there are two matters for the consideration of the jury:
(1)the belief of the defendant in the need to use defensive force and;
(2)the determination of whether the force used was reasonable in the circumstances as the defendant believed them to be.[2]
Was the defendant acting in defence of him/herself or another? (subjective test)
1.1.3The first component of the test (the assessment of the need to use force) is a purely subjective test. This means that the jury is concerned with the state of mind of the particular defendant. The fact finder must put themselves in the position of the defendant and determine what was the threat or danger that the defendant believed to exist. The question is not what a reasonable person, in the defendant’s circumstances, would have thought or whether there were reasonable grounds for the defendant’s belief — but whether the defendant really believed there was a situation requiring the use of force in self-defence or in the defence of another.[3]The jury needs to consider whether the defendant genuinely and honestly believed that they were acting in self-defence (as opposed to responding for some other reason such as revenge or retaliation).
1.1.4This means that the defendant can be mistaken about the need to use self-defence. For example, a person may believe that someone approaching them has a gun when in reality there is no gun. Alternatively, a threatening situation may exist (for example, a defendant may be confronted by a person carrying a wooden rake) but the defendant may make a mistake about the nature of the threat faced (for example, they might think that the person is carrying an iron bar rather than a wooden rake).[4]There is no additional requirement that the mistake is one that a reasonable person would make or a mistake that is based on reasonable grounds.[5] However, this does not mean that the fact finder (jury or magistrate) must take the defendant at their word. The fact finder may not believe that the defendant made a mistake and/or may not believe that the defendant was acting in self-defence.
Was the force used reasonable in the circumstances as the defendant believes them to be? (subjective/objective)
1.1.5The second component of the test (the assessment of the amount of force used) is a mixed objective/subjective test. The jury needs to determine the circumstances as the person believed them to be (subjective) and then determine whether a reasonable person in those circumstances would have considered that the force applied by the defendant was reasonably necessary (objective).[6]The defendant can be mistaken about the circumstances that they faced. Therefore, if the defendant was confronted by a person aggressively approaching with a gun pointed at him or her and who was threatening to shoot and the defendant believed that the gun was loaded (when in fact it was unloaded), the defendant’s response is to be assessed on the basis that they were responding to a threat involving a loaded gun.[7]Using the examples provided earlier, the defendant’s conduct is to be assessed on the basis that they were confronted by an iron bar (not a wooden rake) or an armed assailant (not an unarmed assailant). However, this test does not mean that the fact finder is required to accept the defendant’s assessment of the amount of force that was necessary —it does not matter that the defendant considered the force used was reasonable. This is because thedefendant’s belief as to the amount of force needed is not the issue. The question is whether the force used was reasonable on an objective basis. It is for the jury to decide whether the reaction of the defendant was reasonable and acceptable in the situation as they believed it to be, or whether the defendant went too far and the force used was excessive.
1.2The need for reform
1.2.1Concern has been raised that under the current formulation of self-defence, the defence contained in the Criminal Code (Tas) s 46 is not precluded even if the accused’s perception of the circumstances is entirely irrational. This is said to beinappropriate as it affords an unduly favourable andexorbitant defence to those who quickly resort toviolence in the absence of any proper objectively determined circumstance that establishes the need to use defensive force.
1.2.2In assessing the reasonableness of the force used by the defendant, another difficult question that arises is what circumstances can be taken into account by the fact finder in assessing whether the force used was reasonable in the circumstances as the defendant believed them to be? This is not clear from the words in s 46 of the Criminal Code and is open to different interpretations. One interpretation is that ‘circumstances’ are narrowly confined to the defendant’s belief as to the external circumstances that exist at the time (such as an aggressor holding a loaded or unloaded gun). Another interpretation is that the focus on the subjective belief of the defendant mean that the ‘circumstances’ as the accused believes them to be extends more broadly to include personal characteristics and attributes that affect the defendant’s perception of the situation (such as experiences that make the defendant more fearful, or mental illness or intoxication). It can be argued that the subjective component of the test of self-defence has the scope to allow offenders to rely on their mistaken and irrational perception of the circumstances arising from mental illness or intoxication as the basis for their defence. As a consequence, it may be argued that the defence is too lenient and out of step with modern standards and community expectations.